NAVE & RAYMOND

[2015] FamCA 160

FAMILY COURT OF AUSTRALIA

NAVE & RAYMOND [2015] FamCA 160

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the parties cohabited for approximately 16 years – Where each party had children from previous relationships – Where principal asset of the parties is the sale proceeds of the former matrimonial home – Where the wife’s financial contribution is greater than the husband’s – Where the wife’s efforts in caring for the husband’s children require significant recognition – Where there is no adjustment for 75(2) factors – Where the contributions of the wife are found to be 60 per cent and the contributions of the husband are 40 per cent.

Family Law Act 1975 (Cth) ss 75, 79

APPLICANT: Mr Nave

RESPONDENT: Ms Raymond

FILE NUMBER: PAC 5470 of 2013

DATE DELIVERED: 13 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Rees J

HEARING DATE: 5 and 6 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Dignan & Hanrahan

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Manning Lawyers

Orders

IT IS ORDERED

1. That Mr Nave (“the husband”) and Ms Raymond (“the wife”) (“the parties”) do all acts and things required to effect the payment of the money in the controlled monies account by Dignan & Hanrahan, solicitors, as to $356,850 to the wife and the balance to the husband.

2. That the parties do all acts and things required to effect the following transfers:

   (a)The parties’ interest in the joint accounts with St George Bank and ING Bank to the husband;

   (b)       The Utility vehicle to the husband; and

   (c)       The Japanese motor vehicle to the wife.

3. That unless the parties otherwise agree, the husband shall prepare two lists containing all of the contents of the former matrimonial home and the wife shall choose which list of items she wishes to retain . Upon her election, the wife shall be solely entitled to the items set out in the chosen list, and the husband shall be solely entitled to the items set out in the other list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nave & Raymond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 5470 of 2013

Mr Nave

Applicant

And

Ms Raymond

Respondent

REASONS FOR JUDGMENT

1. Mr Nave (“the husband”) and Ms Raymond “(the wife”) commenced living together in July 1996. They married in 1997. Each had adult children from prior relationships and the husband had two small children B, then aged eight and C, then aged three who lived with him.

2. At the commencement of cohabitation, the husband owned a home at D Street, Suburb E (“D Street”) jointly with his former wife.

3. The wife owned a property at Suburb F. She was in receipt of a pension as a result of the death, in the course of his duties, of her former husband and had other investments which she had received as a consequence of her former husband’s death.

4. The parties lived together initially at D Street. They did renovations to that property and paid out the interest of the husband’s former wife pursuant to orders for property settlement.

5. In about 2000 D Street was sold and the parties purchased the former matrimonial home at G Street, Suburb E (“the former matrimonial home”) where they lived with the husband’s two children until they separated on 14 December 2012.

6. The husband and his children continued to live in the former matrimonial home after separation and the wife lived with her daughter.

7. During the period the parties lived together they jointly conducted an enterprise in breeding (“the breeding business”). The breeding business made a loss in every year and those losses were claimed by the parties in their respective taxation returns. There is however no dispute between the parties that this was an enterprise they both enjoyed and that they should each share the benefits and detriments of the enterprise.

8. After separation the former matrimonial home was sold and the monies were placed in a controlled monies account.

9. There were very few issues of fact to be determined between the parties who were generally in agreement about the contributions which each of them had made.

SECTION 79(2)

1. The principal asset of the parties is the proceeds of sale of the jointly owned former matrimonial home and those proceeds are to be distributed between them. Each of the parties asks the Court to make an order to divide their assets and it is just and equitable to do so.

THE BALANCE SHEET

ASSETS        

DESCRIPTION	VALUE
1.	J	Proceeds of sale of former matrimonial home	$765,893
2.	J	Japanese car to be retained by wife	$    8,000
3.	J	Utility to be retained by husband	$    5,000
4.	J	St George and ING accounts	$      263
5.	W	BT account	$232,364
6.	W	CBA shares	$    6,834
7.	W	Police Bank account	$    1,300
8.	H	IMB account	$      260
TOTAL	$1,019,914

LIABILITIES

9.	H	IMB loan	$11,000
NET ASSETS	$1,008,914

1. Insofar as there were any disagreements between the parties in relation to the Balance Sheet, the findings are explained using the numbers appearing in the document.

   Household Contents and Artworks

2. It is agreed that when the wife left the former matrimonial home the majority of the household contents including the artwork was left in the home. At the conclusion of submissions the parties wished to reach an agreement about the way in which the contents should be divided and I indicated to them that in the absence of an agreement the contents would be divided on a “pick a pile” basis. Accordingly no value is attributed to household contents and these items are removed from the Balance Sheet.

   2.        The Wife’s Japanese Car

3. There is no evidence of value in relation to this item and the only evidence is the wife’s admission against interest. The vehicle will be included in the Balance Sheet at her estimated figure of $8,000.

   3.        The Husband’s Ford Utility

4. There is no evidence of value in relation to this item and the only evidence is the husband’s admission against interest. The vehicle will be included in the Balance Sheet at the husband’s estimated figure of $5,000.

   5.        The Wife’s BT Fund

5. In the course of evidence the wife conceded that, having retired, she was able to deal with the BT Fund as if it were a bank account and therefore the fund, although it has its genesis in superannuation, will be included as an asset.

   9.        The Husband’s IMB Loan

6. It was the husband’s evidence that in about December 2013 he obtained a personal loan from IMB in the sum of $11,000 and applied the funds to stud fees, veterinary fees, feed bills, repair of the pool at the former matrimonial home, the replacement of the hot water system, repairs to the ride on-mower and in reduction of his David Jones credit card. Insofar as his funds were expended on the parties’ jointly run horse business and their matrimonial home, these were payments of joint liabilities or for the preservation of jointly owned assets. The husband gave evidence that the liability on his David Jones credit card had been largely incurred during co-habitation. In my view it is appropriate to allow the husband’s IMB debt as a joint debt.

7. The balance of the liabilities claimed by the parties relate to liabilities incurred after separation and should not be included as joint liabilities for the purpose of the Balance Sheet.

INITIAL CONTRIBUTIONS

1. The husband owned D Street which had an agreed value of $240,000 at the commencement of co-habitation. From this amount must be deducted the mortgage of $36,000 and the amount which was paid to the husband’s former wife by way of property settlement of $26,500. Thus the husband’s initial contribution was $177,500. He also had equipment and animals which he sold two years after the commencement of co-habitation for $32,000. There is no evidence of the value of the animals at the time of co-habitation.

2. The husband was also a contributor to superannuation but his interest as at the date of co-habitation has not been quantified.

3. The wife, either shortly before co-habitation or shortly after, sold her property at Suburb F. It was her evidence that she received a net amount of $120,000. Annexed to her affidavit was a certificate for a term deposit in the sum of $70,000. In her affidavit she said she also had a significant amount of money in cash. In her oral evidence she said that $50,000 was deposited into the parties’ joint account. It was the wife’s evidence that the sum of approximately $100,000 from those funds was used for renovations to the former matrimonial home. In relation to the renovations the husband agreed that the renovations had been done as the wife asserted but did not accept that they cost $100,000, suggesting that the amount was less. Other than saying that the amount seemed a bit high, he did not offer an alternate figure. It is not in dispute the renovations must have cost more than $70,000. Similarly it is not in dispute that the husband did not have any funds to contribute towards the cost of the renovation.

4. Generally in her evidence the wife’s recall of financial matters was substantiated by documents whereas the husband on many occasions was inaccurate, although not deliberately so. For example the husband, in his two Financial Statements filed in the proceedings, on many occasions said that figures which he had quoted as weekly figures were in fact fortnightly figures and figures which he had quoted as fortnightly figures were in fact weekly figures. The parties both gave evidence that during the marriage it was the wife who was responsible for book keeping and arranging and managing the parties’ financial affairs. It is likely that the wife’s recall of the proceeds of sale of the Suburb F property is accurate.

5. In my view it is most likely that the wife, as she recalled, had received $120,000 from the sale of the Suburb F property. In addition the wife had $45,973 in BT Funds Management, $12,539 in Norwich Investment Bonds and $57,229 in a Colonial Mutual Annuity Plan. The wife also had MGA Pacific shares (but there is no evidence of the value of the shares at that time) and she had her interest in the H Superannuation. Thus the wife’s initial contribution was $235,741, not including her entitlements under the H Super and her unquantified interest in the shares.

FINANCIAL CONTRIBUTIONS DURING CO-HABITATION

1. For the whole of the period the parties lived together the wife’s earnings exceeded those of the husband. In addition to her earnings by way of employment, she received throughout the whole period a pension arising out of the death of her first husband. At the commencement of co-habitation the wife’s earnings by way of employment and pension were $70,000 per annum and the husband’s earnings were $38,000 per annum. At the conclusion of co-habitation the wife was earning $135,000 per annum from all sources and the husband was in receipt of a pension of approximately $52,000 per annum. At all times during co-habitation the wife’s income exceeded that of the husband.

2. Counsel for the wife submitted that, as part of the assessment of contributions, there should be an adjustment in favour of the wife for the fact that she earned a greater income than did the husband. I do not accept that submission.

3. In most cases there is a disparity between the incomes of the husband and the wife. However, it is my view that if both of the parties diligently applied themselves to their employment and earned as much as they could, having regard to their resources, then there ought be no adjustment merely by virtue of the fact that one of them earned a greater amount then the other.

4. In 2002 or 2003 the husband received an inheritance of $110,000. That was applied towards the general financial purposes of the family.

5. In 2009 the husband retired and received two lump sum payments of $62,866.66 by way of superannuation and $28,031.40 by way of leave and salary; a total of $90,898. Those funds were placed in the joint account and used for family purposes.

6. In July 2012 the wife retired and received a lump sum of $483,000 which she invested in her BT account. At trial, the amount held in the BT account had been reduced to $232,364, the balance having been spent by the wife on legal fees and on other personal expenses which were not disclosed. The parties agreed that, for the purpose of the assessment of contributions, the wife’s contribution of her retirement benefits should be limited to $232,364 and those funds which have been spent should be disregarded.

7. Thus during the relationship the husband received lump sums of $200,898 and the wife received lump sums of $232,264.

8. Having regard to her greater initial contribution, the wife’s financial contribution was greater than that of the husband.

PHYSICAL CONTRIBUTIONS DURING CO-HABITATION

1. Both of the parties conceded that each of them contributed to the full extent of their ability towards the welfare of their family constituted by themselves and the husband’s two sons of his former marriage.

2. There was some dispute as to whether or not the wife had made contributions to the care of the husband’s two children to the same extent as had the husband. The evidence before me was that the wife left for work at about 7.00 am in the morning and returned home, until about 2006 at 6 pm, and after that at 7.00 pm.

3. The husband worked considerably shorter hours. The husband was able to care for the children in the morning and get them ready for school and was available to pick them up in the afternoon and care for them after school.

4. In 1998 the husband commenced part-time employment working five days a week for six hours a day. After approximately two years he returned to full-time employment until October 2008. In 2009 he was medically retired and not thereafter engaged in paid employment.

5. It is not disputed that, during the time when the wife was not working, she applied herself diligently to the care of the children and, in all respects, undertook her role as step-mother to them to the best of her ability.

6. Counsel for the husband and the wife agreed that it was more appropriate for the Court to take the wife’s contribution to the care of the children into account when dealing with contributions and I propose to do so with their agreement. The wife’s efforts in caring for the children between 1996 and 2012 require significant recognition.

7. For a period of time between October 2008 and December 2012, a cottage on the property comprising the former matrimonial home was occupied by the wife’s daughter and her husband. The arrangement was that the wife’s daughter and her husband would occupy the property rent free, that they would pay the utilities and that they would pay the cost of any renovation which they wished to carry out on the cottage. It is agreed that renovations were done on the cottage and that the wife deposed that her daughter and her husband contributed approximately $10,000 towards those renovations. The husband and the wife also made financial contributions towards the renovations and the husband and one of the children physically worked on the renovations. After the parties separated, the husband’s children and a friend of theirs occupied the cottage. They also did not pay rent. No adjustment should be made for the contribution of the rent free accommodation to either the wife’s daughter or the husband’s sons.

CONTRIBUTIONS AFTER SEPARATION

1. The husband remained in occupation of the former matrimonial home, to the exclusion of the wife, until its sale in January 2015.

2. From separation until September 2013 the wife deposited money into the joint account to cover the expenses relating to the horses and to the former matrimonial home, including the mortgage. The total amount she deposited was $32,000.

3. In the same period the husband deposited his superannuation income into the parties’ joint account. His total deposits were approximately $35,000. However, the husband gave evidence that he had a shortfall between his income and his expenses in that period and the statements for the joint account show that money was withdrawn by him to pay his day to day expenses.

4. The mortgage payments were approximately $2,800 per month. The wife’s half share was $1,400. It is not possible to ascertain what the expenses for the breeding business were but to the extent that the wife paid money into the joint account in excess of half of the mortgage and half of the expenses of the breeding business, that was a contribution by her to the upkeep of the former matrimonial home and the breeding business in circumstances where the husband had the benefit of the occupation of the home.

5. In April 2014, consent orders were made requiring the husband to pay the whole of the mortgage. He paid only half until August 2014 when he ceased to pay any mortgage payments. Thus the amount outstanding under the mortgage was increased because of the husband’s failure to pay.

6. Taking into account the wife’s greater contribution of lump sum amounts during cohabitation; her contribution to the upkeep of the former matrimonial home and the breeding business after separation; her contribution to the care of the husband’s children, and his failure to pay the mortgage instalments in accordance with the orders, the contributions should be assessed as to 60 per cent in favour of the wife and 40 per cent in favour of the husband.

SECTION 75(2)

1. The husband is 63 years of age and the wife is 58 years of age. They have both retired. Neither intends to engage in paid employment. The husband has some health problems but they do not prevent him doing manual work such as lawn mowing. The wife wishes to devote herself to the care of her grandchild who has health difficulties. There is no evidence that either has the capacity to earn a significant income from employment.

2. There is no evidence that the state of the husband’s health will require him to spend his funds on his care.

3. The husband’s pension is net $1,970 per fortnight and the wife’s is $1,328. Insofar as the wife has the BT funds, they have been brought into account in the Balance Sheet.

4. There should be no adjustment for s 75(2) factors.

CONCLUSION

1. The wife will receive 60 per cent of the net assets and the husband 40 per cent. The wife will receive $605,348. She has in her possession, or will retain, assets totalling $248,498.

2. Therefore the wife will receive, from the controlled monies account, $356,850.

3. The husband will retain the Utility vehicle worth $5,000 and the amounts in the St George Bank and the ING Bank.

I certify that the preceding Forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 March 2015.

Associate:

Date:  13 March 2015